F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

OCT 10 1997

PATRICK FISHER
Clerk

DAN ROBERTS,
Plaintiff-Appellant,
v.
STEVE P. CHILDS; WILLIAM F.
LYLE, Jr., Judge; RENO COUNTY,
KANSAS; STEVEN BECKER, Judge;
PATRICIA MACKE-DICK, Judge;
RICHARD ROME, Judge; D.
STEWART OSWALT, deceased;
ANDREW L. OSWALD; DAVID E.
ROBERTS; DAVID KURT; ELLEN
G. NEUFELD; RENO COUNTY LAW
LIBRARY BOARD OF TRUSTEES,

No. 97-3108
(D.C. No. 96-CV-1355)
(D. Kan.)

Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of

This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

Appellant Dan Roberts, appearing pro se, appeals the dismissal of his civil
rights action filed pursuant to 42 U.S.C. 1983. We exercise jurisdiction
pursuant to 28 U.S.C. 1291 and affirm.

According to his First Amended Complaint, filed January 22, 1997, Mr.
Roberts is currently charged with "cultivation of marijuana," a state offense, and
is awaiting prosecution in Reno County District Court. Mr. Roberts apparently is
not in custody and has been appointed a public defender to represent him on the
charge. He alleged in his amended complaint he is being denied effective
assistance of counsel as his assigned public defender "can hardly be expected to
provide effective assistance of counsel," when he is "burdened with fifty (50)
cases to handle." He further alleged he is being denied his right to represent
himself pro se through denial of access to the county law library. Finally, Mr.
Roberts claims denial of access to the county law library has deprived him of
equal protection of the laws under the Fourteenth Amendment. He seeks
compensatory and punitive damages in addition to equitable relief.

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On defendants' motions, the district court dismissed Mr. Roberts' complaint

against all defendants in well-written orders filed January 28, 1997 and March 25,
1997. The district court held insofar as Mr. Roberts' complaint seeks equitable
relief concerning his right to effective assistance of counsel, the right to represent
himself, or his right of access to the court in the state criminal matter, it must
abstain from exercising jurisdiction under the Younger v. Harris, 401 U.S. 37
(1971), doctrine. Younger and its progeny hold that absent extraordinary
circumstances creating a threat of great and immediate irreparable injury, a
federal court is prohibited from interfering with ongoing state criminal
proceedings. Id. at 45; Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir.
1995); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir. 1981).

Insofar as Mr. Roberts seeks monetary damages stemming from the alleged
ineffective assistance of counsel or denial of the right to represent himself, the
court held such claims unactionable under 1983 unless and until Mr. Roberts is
convicted on the pending criminal charge and that conviction is later invalidated
on those grounds. The court further held denial of access to the county law
library to a person not in state custody and represented by counsel does not
amount to a denial of access to the courts as guaranteed by the Fourteenth
Amendment. Finally, the court held Mr. Roberts failed to allege an equal
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protection claim under circumstances where he was allowed access to the county
law library if accompanied by his appointed counsel, and where access
restrictions are rationally related to legitimate purposes such as protecting library
resources from theft and collecting user fees to maintain the library. For these
reasons, the district court dismissed Mr. Roberts' damages claims for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).

We have carefully reviewed the briefs and the record on appeal. Finding no
error, we AFFIRM the district court's dismissal of Mr. Roberts' complaint for
substantially the same reasons set forth in the district court's order filed January
28, 1997.

Entered for the Court

WADE BRORBY
United States Circuit Judge

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